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Schambon v. Commonwealth

Court of Appeals of Kentucky

June 9, 2017

FLOYD SCHAMBON APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE BARBARA SCHAMBON APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN R. GRISE, JUDGE ACTION NOS. 89-CR-00636, 89-CR-00635

          BRIEFS FOR APPELLANTS: Amy Robinson Staples Meredith Krause Assistant Public Advocates Department of Public Advocacy Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky

          BEFORE: J. LAMBERT, STUMBO, AND TAYLOR, JUDGES.

          OPINION

          LAMBERT, J., JUDGE.

         Floyd and Barbara Schambon appeal from the Warren Circuit Court's denial of their Kentucky Rules of Civil Procedure (CR) 60.02 motions for relief. On appeal, they argue that the trial court erred when, after an evidentiary hearing, it found that a new trial was not warranted based on the recanted testimony of a trial witness and when it found that the motion was untimely. For the following reasons, we affirm.

         In June 1990, a Jefferson County jury convicted the Schambons of eight counts of first-degree sodomy, three counts of first-degree criminal abuse, twenty-one counts of second-degree sodomy, and twenty-eight counts of second-degree animal cruelty. Barbara was also convicted of one count of incest. The sodomy, criminal abuse, and incest charges arose from acts the Schambons committed on their four children: thirteen-year-old C.S.; ten-year-old E.S.; eight-year-old A.S.; and five-year-old R.S. The convictions for these charges rested almost entirely on the testimonies of C.S. and R.S. The animal cruelty charges arose from appellants' mistreatment of a large number of animals found at their residence.[1] Each appellant was sentenced to a total of eighty-five years' imprisonment. Final judgments were entered July 19, 1990.

         On direct appeal to the Supreme Court of Kentucky, the Schambons argued that the trial court erred by trying them jointly, by trying the animal cruelty and sex offenses together, by admitting certain evidence, by denying their motion for a directed verdict on the sex offenses, and by permitting the prosecutor to make improper arguments. The Court rejected each of the arguments and affirmed their convictions and sentences.

         On April 3, 2006, the Schambons filed their motions, pursuant to CR 60.02, that are the subject of this appeal. In those motions, the Schambons claimed, among other things, that they were entitled to relief based on 1) A.S.'s and E.S.'s statements that no sexual abuse occurred; 2) C.S. recanting his claims of sexual abuse and acknowledging that he influenced his younger brother, R.S., to make the false claims; 3) a 2003 affidavit from the children's guardian ad litem in which he stated that C.S. told him prior to trial that he had not been abused; 4) the results of a polygraph test revealing that neither Floyd nor Barbara was being deceptive when asked whether they had any sexual contact with R.S.; 5) a report by Dr. Eric Y. Drogin concluding that deficiencies in the 1989 forensic interview with R.S. "cast significant doubt" on R.S.'s responses and his subsequent testimony; and 6) an affidavit from Dr. Ralph Underwager concluding that the 1989 forensic interview with R.S. was flawed.

         The trial court denied the Schambons' motions without an evidentiary hearing. On appeal, a panel of this Court reversed the trial court's denial of the Schambons' request for an evidentiary hearing, vacated its order denying relief under CR 60.02, and remanded the matter to the trial court for an evidentiary hearing. In reversing, this Court determined that the affidavit submitted by C.S. as part of the Schambons' motion, while not contradicting the testimony he gave at trial, contradicted a report C.S. had written and was questioned about at trial. Thus, we held that "[C.S.]'s affidavit sufficiently contradicts his trial testimony and raises an issue of fact that merits an evidentiary hearing." Schambon v. Commonwealth, 2010 WL 4025871 at *8 (2009-CA-000793-MR & 2009-CA-000794-MR) (Ky. App. Oct. 15, 2010). We further found that the trial court "prematurely determined that the motions were not timely[, ]" and that the Schambons should be "permitted to present, through testimony at the evidentiary hearing, the reasons for delay." Id. at *9.

         On October 18, 2013, the trial court conducted an evidentiary hearing and heard testimony from the Schambons' former attorneys as well as testimony from C.S. and two expert witnesses, Dr. Drogin and Dr. Keith Lyle, who testified to flaws in the forensic interview. The guardian ad litem testified via deposition.

         After hearing the testimony, the trial court on September 24, 2015, entered an order denying the Schambons' motions. Therein, the trial court once again found that the motions had not been filed within a reasonable time. Further, the court found that the motions lacked merit. This appeal followed.

         "The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion." White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); see also Kurtsinger v. Bd. of Trustees of Ky. Ret. Sys., 90 S.W.3d 454, 456 (Ky. 2002); Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). To amount to an abuse of discretion, the trial court's decision must be "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). "Absent some flagrant miscarriage of justice an [appellate] court should respect the trial court's exercise of discretion[.]" Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).

         Relief may be granted under CR 60.02(f) for any reason of an extraordinary nature justifying relief. A CR 60.02(f) motion, however, must be made within a ...


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